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What's next? (cont.)

Posted: Wednesday January 16, 2008 10:38PM; Updated: Wednesday January 16, 2008 10:38PM
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4) Did anything seem unusual in the order issued against Moss?

Despite having what Washington calls an "intimate relationship" with Moss for the last 10 years, she did not note any "distinguishing marks/scars" on him. That may, of course, have been an oversight, just as it is eminently possible that Moss has no such markings. But if he does have any distinguishing marks/scars, her failure to mention them could potentially call into question the strength and duration of their relationship.

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5) Why hasn't Moss been charged with a crime?

There are several possible explanations, though it should be noted, as of Wednesday night, there is no indication local police investigated the alleged incident.

First, the police may have investigated and concluded there was not (yet) sufficient evidence to justify seeking charges of assault and battery against Moss. Alternatively, as noted above, a police investigation may not have taken place, perhaps because the police was not made aware of the alleged incident. Or an investigation may still be in progress.

Differences between family law and criminal law standards may also be relevant. The temporary restraining order secured by Washington required her to make a "reasonable" argument for immediate protection, a standard that may not have proven high, particularly given that Moss was not there to defend himself.

6) Will either the NFL or the Patriots punish Moss?

I do not believe either the Patriots or NFL will punish Moss, at least until the Jan. 28 hearing takes place. If it is determined at the hearing, however, that Moss physically assaulted Washington, he could face punishment under the NFL's player conduct policy, including immediate suspension. For many important reasons, pro sports leagues, as well as their respective players' associations, consider domestic violence to be a terrible and disturbing phenomenon that they should do all they can to deter. If Moss indeed hurt Washington, the NFL cannot and, I suspect, will not ignore it.

Then again, the upcoming hearing will not comprise a criminal trial, where Moss would only be found guilty if the prosecution proved "beyond a reasonable doubt" that he committed a crime. Instead, the hearing will incorporate family law and a judge will hear arguments from Washington, rather than from government prosecutors, and Moss (or their attorneys), from which the judge will make a reasonable determination. The stakes for Moss are thus obviously lower than they would be in a criminal trial: Moss will not be threatened with jail, but only a lasting inability to go near Washington.

NFL commissioner Roger Goodell may thus decline to punish Moss unless and until this matter turns to the criminal system. But even then, Goodell might wait a while before acting: he waited to suspend Michael Vick until after Vick's admission of guilt in the dog-fighting scheme. Also, and though under a different league commissioner who lacked the powers of the new player conduct policy, Ray Lewis escaped punishment from the NFL in 2000 despite having been indicted for two murders and despite eventually pleading guilty to obstruction of justice.

On the other hand, Goodell suspended the often-arrested Pacman Jones for the entire 2007 NFL season, despite Jones having not been convicted of any crimes. Goodell reasoned the punishment on protecting the integrity of the game, telling Jones his "conduct has brought embarrassment and ridicule upon [him]self, [his] club, and the NFL, and has damaged the reputation of players throughout the league." Goodell may have also considered suspending former Cincinnati Bengals linebacker A.J. Nicholson following his arrest for allegedly beating up his girlfriend, but the Bengals waived Nicholson hours after he pled not guilty. Nicholson then signed with a team in the Arena Football League.

As to the Patriots, they also appear unlikely to punish Moss, for similar reasons noted above. In addition, Patriots coach Bill Belichick is already on record pledging his support, saying that he supports Moss "100 percent."

On the other hand, under the ownership of Robert Kraft, the Patriots have been among the most active NFL teams in denouncing domestic violence.

Many may remember the Patriots terminating their draft rights to Christian Peter, whom the team had drafted in the fifth round of the 1996 draft, due to Peter's criminal history, which included a recent conviction for disturbing the peace relating to his grabbing a woman around the neck at a bar. The team has also been repeatedly praised for their monetary and personal contributions to anti-domestic violence campaigns, including to the R.O.S.E Fund (Regaining One's Self-Esteem), the Boston-based non-profit organization "dedicated to recognizing, assisting, and empowering women who have broken the cycle of domestic violence."

On balance, however, it seems unlikely that Moss faces any imminent punishment by either the league or Patriots, though the results of the Jan. 28 hearing may prove influential.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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